Ontario College of Teachers v. Toh, 2021 ONOCT 85

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Toh 2021 ONOCT 85

Date: 2021-06-24

PENALTY DECISION AND ORDER

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against Kar-Fai Andy Toh, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KAR-FAI ANDY TOH (REGISTRATION #431290)

PANEL: Tom Potter, Chair Rebecca Forte, OCT Nicola Powadiuk, OCT

HEARD: May 11 and June 24, 2021

Charlotte-Anne Malischewski and Nicholas Fitz, for the Ontario College of Teachers

No one appearing for Kar-Fai Andy Toh

Rebecca Durcan and Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on May 11 and June 24, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2On May 11, 2021, the Panel unanimously found that Kar-Fai Andy Toh (the “Member”) engaged in professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(4), 1(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19). The Panel received the parties’ Joint Submission on Penalty (Exhibit 3) but sought additional submissions on how the penalty meets the goal of protecting students and preserving the public’s confidence in the College’s ability to regulate the profession. The hearing was subsequently adjourned so that the parties could prepare their additional penalty submissions.

3On June 24, 2021, the Panel reconvened to hear the parties’ additional penalty submissions. The Member did not attend the hearing and did not have legal representation. The Member, however, joined via videoconference to receive his reprimand.

A. MAJORITY PENALTY Decision

Per Tom Potter and Rebecca Forte:

4On June 24, 2021, the majority of the Panel accepted the parties’ Joint Submission on Penalty and made the following order as to penalty:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario or by videoconference, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three months commencing on the 15th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register. If the Oral Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1;

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course or courses of instruction pre-approved by the Registrar regarding boundaries and professional ethics, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course or courses which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course or courses to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner:

(i) stating that the Member has successfully completed the course or courses and reporting on the progress of the Member with respect to addressing the outlined goals of the course or courses.

B. MINORITY PENALTY DECISION

Per Nicola Powadiuk:

5The minority concurs with the majority of the Panel with respect to all elements of the penalty ordered, other than the length of the suspension. The minority would have rejected the parties’ Joint Submission on Penalty on the basis that the three-month suspension was so lenient that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The minority believes that a 12-month suspension would have been appropriate in the circumstances of this case.

6A written decision with reasons will follow.